The Geneva-based World Intellectual Property Organisation (WIPO) has moved forward on the creation of a single text for discussions in the area of genetic resources. The use of genetic resources and traditional knowledge for industrial application through patents has been an issue of debate for many years at the World Trade Organisation (WTO) and WIPO.
The new text was discussed at the 20th session of the WIPO Intergovernmental Committee on Genetic Resources, Traditional Knowledge, and Folklore (IGC) in February. The committee was set up over a decade ago to sort out the differences between countries that are rich in genetic resources and traditional knowledge and the developed world that uses these genetic resources for developing patents for industrial use.
One of the most contentious issues in creating this single legal text started with some of the developed countries seeking to change the term intellectual property rights (IPR) mentioned in the text to patents. However, countries like Bolivia that supported the use of IPR said the term needed to have boarder coverage since patents, as a term, had a narrow focus, while IPR also included geographical indications.
The new text provides different options that can be chosen by countries for defining some important terms. For example, for defining “genetic resources” the text provides two options. The first option provided for discussions stated that “genetic resources” are genetic material of actual or potential value, while the second option defines “genetic resources” as it is understood in the CBD (convention on bio diversity) and related instruments and the International Treaty on Plant Genetic Resources for Food and Agriculture.
The other area of concern for developing countries has been the need for patent seekers to state the source from where the genetic resources have been obtained and also provide details of any traditional knowledge that may be associated with these. Developed countries like the US and Japan are of the view that mandatory disclosure of such information will make the job of patent seekers very difficult. The US felt the need for carrying out studies to see the impact of such a move that did not find support from many countries like Egypt, South Africa and India. The African group was, reportedly, of the view that there are several studies that exist and they can be put together by WIPO for better understanding. India, reportedly, made a strong statement at the meeting that there are enough instances of how available genetic resources and traditional knowledge had been used freely by patent seekers without acknowledging the source of the genetic resource or the traditional knowledge attached to it.
A few countries tried to overcome this issue by stating that WIPO may put together a non-binding document that lists out the genetic resources and traditional knowledge available in different countries. However, many others who support the need to acknowledge the presence of genetic resources in patents were of the view that non-binding documents would not serve the purpose.
The debate on the use of genetic resources and traditional knowledge has been going on for a long time since developing countries fail to make profit because of the use of genetic resources by patent seekers that are later developed into business products by industry.
The IGC, which was set up with the aim of resolving the dispute, has certainly come a long way to look at issues on both sides of the table. However, it is important for countries to ensure that the rights of the owners of genetic resources and the traditional knowledge associated with it is acknowledged and rewarded. Patents are extremely important instruments to provide a push to inventions that galvanise industry into making better products.
However, any move that takes away the original rights of the people who own the resources would be unfair. The possible exclusion of the rights of people was evident when the indigenous people who attend the meeting of the IGC staged a walkout stating that they were not being heard in these meetings.
If WIPO has to be seen as a transparent and fair organisation that balances the developmental need of members with genetic resources with the need for providing a push to inventions and innovation in industry, then it will have to find the right mix of proposals in the final document on this contentious issue.
The author is Principal Adviser with APJ-SLG Law Offices